Ness Creameries v. Barthes

• Decision Date: 05 June 1934
• Docket Number: 31265
• Citation: 170 Miss. 865,155 So. 222
• Court: Mississippi Supreme Court
• Parties: NESS CREAMERIES v. BARTHES et al

155 So. 222

170 Miss. 865

NESS CREAMERIES v. BARTHES et al

No. 31265

Supreme Court of Mississippi

June 5, 1934

Division A

Suggestion Of Error Overruled October 1, 1934.

APPEAL from circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Mrs. Mabel Barthes and another against the Ness Creameries. From a judgment for plaintiffs, defendant appeals, and the plaintiffs cross-appeal. Judgment affirmed on direct appeal and reversed and former judgment reinstated on cross-appeal.

Judgment affirmed on direct appeal and reversed on cross appeal.

W. L. Guice and Wadlington, Corban & Grant, all of Biloxi, John L. Heiss, of Gulfport, and R. H. and J. H. Thompson, both of Jackson, for appellant.

Plaintiff's intestate was nothing more nor less than an invitee. The record discloses that defendant's machinery and plant, so far as defendant knew, were in a perfectly safe condition; that neither defendant nor any of its servants had any cause to suspect that the pipe extending from the ammonia drum would be broken.

Samuelson v. Cleveland Iron & Mining Co., 43 Am. Rep. 459.

When plaintiffs were held to be entitled to go to the jury on the question of whether or not defendant was negligent in maintaining the pipe this was tantamount to a ruling, in view of the undisputed testimony, that defendant owed to plaintiffs' intestate the very highest degree of care for his safety. This is not the law. Defendant was not an insurer and defendant was not under the duty to William Barthes of exercising the highest possible degree of care in the maintenance of its plant.

McDonald v. Hall-Neely Lumber Co., 165 Miss. 143; Mitchell v. Brooks, 165 Miss. 828.

Even in the cases where the relation between master and servant exists, the master is not held liable for injuries resulting from defective tools or appliances unless the master has knowledge, either actual or constructive, of the existence of the defect in the tool or appliance.

Hope v. Railroad Co., 98 Miss. 822; Miss. Central Railroad Co. v. Bennett, 111 Miss. 163; Corpus Juris, section 1279, page 1079.

But we are not dealing with an action between a master and a servant. We are dealing with the case of an invitee to whom the obligation of the owner of the premises was not at all the same as is the obligation of a master to a servant.

Press v. Penny, 18 A. L. R. 794; Arizona Binghampton Copper Co. v. Dickson, 44 A. L. R. 881; Warner v. Synnes, 44 A. L. T. 904; 44 A. L. R. 1014; Baddeley v. Shea, 114 Cal. 1, 33 L. R. A. 747, 55 Am. St. Rep. 56, 45 P. 990; Boner v. Eastern Michigan Power Co., 193 Mich. 629, 160 N.W. 453; Colleoni v. Delaware & H. Co., 274 Pa. 319, 118 A. 248; Doughterty v. D. C. Weeks & Son, 126 A.D. 786, 111 N.Y.S. 218; Brady v. New York, 149 A.D. 820, 134 N.Y.S. 305; Weideman v. Tacoma R. & Motor Co., 7 Wash. 517, 35 P. 414; 29 Am. & Eng. Encyc. of Law, pages 78, 86, 87, 89, 95 and 96.

Where defendant hired plaintiff and then put him to work under the control of a contractor engaged in placing machinery in defendant's mill, defendant paying plaintiff and charging his wages to the contractor, whose contract bound him to pay all expenses of putting in the machinery, plaintiff could not recover of defendant, as his servant, for injuries received owing to insufficient lighting of the mill.

Dallas Mfg. Co. v. Townes, 41 So. 988.

Mize, Thompson & Mize, of Gulfport, for appellees.

The law is that the owner of premises who retains control thereof and employs an independent contractor to perform some work on the premises owes him the duty to exercise reasonable care to furnish him and employees a reasonably safe place in which to work and to warn him of all dangers of which he knows or which he ought to have known of by the exercise of reasonable diligence of inspection.

Nowotny v. St. Louis Brewing Assn., 171 S.W. 941; Kaess v. Tivoli Brewing Co., 111 N.W. 106; Heath v. Calkins, 122 N.W. 84; McDonnell v. Central Drug Co., 136 N.W. 382; Sager v. Solvay Process Co., 129 A.D. 813; McIntyre v. Pfaudler Vacuum Fermentation Co., 95 N.W. 527; Springer v. Ford, 88 Ill.App.Ct. Rep. 529; Wilkinson v. Evans, 34 Pa.Super. 472; Feeney v. New York Waist House, 105 Conn. 647, 136 A. 554; Grey v. R. B. & L. R. Co., 159 N.E. 441; Harvey v. Malchtig, 239, Pac. 78; McDonnell v. Central Drug Co., 125 N.W. 546; Spry Lbr. Co. v. Dugan, 80 Ill.App. Div. 394, 182 Ill. 218, 54 N.E. 1002; Connolly v. Des Moines Investment Co., 105 K. W. 400; McIntyre v. Detroit Safe Co., 89 N.W. 39; Fulton Ice & Coal Co. v. Pece, 116 S.E. 57; Samuelson v. Cleveland Iron Mining Co., 13 N.W. 499; Brannock v. Elmore, 21 S.W. 451; Ryan v. Woodbury Granite Co., 266 Pa. 105; Hall v. Henry Thayer & Co., 113 N.E. 644; Lucas v. Walker, 134 P. 374; Gagnon v. St. Marie Light & Power Co., 141 P. 88; Watkins v. Gabriel Steel Co., 245 N.W. 801; Ellington v. Ricks, 102 S.E. 510; Ogan v. Missouri Pac. R. R., 126 S.W. 191; Murphy v. Core Joint Concrete Pipe Co., 164 A. 262; Ridenour v. International Harvester Co., 205 S.W. 881; Sutton v. Lerner Stores Corp., 162 A. 645; Riley v. Jersey Leather Co., 126 A. 457; Hicks v. Peninsula Lbr. Co., 220 P. 133.

This rule is frequently applied in the case of one who, although not directly employed by the owner of premises, enters thereon by virtue of his employment to perform work which is for the benefit of the owner or in which he has an interest. So a property owner who engaged an independent contractor to perform work on the premises owes to an employee of such independent contractor the same duty that he would owe to an employee of his own in the same situation, and is therefore under a duty to furnish to such employee a safe place to work.

45 C. J., secs. 220-221, sec. 227, page 818; sec. 264, page 846; sec. 292, page 868; sec. 295, page 869; sec. 298, page 873.

More specifically, an owner or occupant of lands or buildings who knows or in the exercise of reasonable care should know, of their dangerous and unsafe condition and who invites others to enter upon the property owes to such invitees a duty to warn them of the danger where the peril is hidden, latent or concealed or the invitees are without knowledge thereof.

45 C. J., sec. 303, page 875; Fladin v. Verdi Lbr. Co., 37 Nevada, 294, 142 P. 531; Haulihan v. Sulzberger & Sons Co., 282 Ill. 76, 188 N.E. 429; Chamberlain v. Lee, 247 S.W. 415; Coughtry v. Globe Woolen Co., 15 Am. Rep. 387, 56 N.Y. 124; Johnson v. Spear, 15 Am. St. Rep. 298, 76 Mich. 139; Bright, Admx., v. Barnett & Record Co., 26 L. R. A. 524; Pauckner v. Waken, 14 L. R. A. (N. S.) 1118; U. S. Cast Iron Pipe Co. v. Fuller, 102 So. 25; Shelby Iron Co. v. Cole, 95 So. 47; Richards v. Consolidated Lighting Co., 99 A. 241; Gray v. Boston, etc., R. H. Co., 129; N.E. 67; Pittingill v. Porter, 107 N.E. 269; Cirmmins v. Booth, 88 N.E. 449, 132 Am. St. Rep. 468; Sullivan v. New Bedford Gas Co., 78 N.E. 1048; McCullen v. Fishel Bros. Amusement Co., 199 S.W. 439; 3 Sherman & Redfield on Negligence (6 Ed.), secs. 692-693; 3 Cooley on Torts (4 Ed.), secs. 440, 442, 500; Khederian v. Conner, 159 N.E. 443; U. S. Cast Iron Co. v. Sullivan, 3 F.2d 794; Hercules Powder Co. v. Williamson, 110 So. 244; American Sand & Gravel Co. v. Reeves, 151 So. 477; Adams v. Grand Rapids et al., 19 Ann. Cas. 1152; Hercules Powder Co. v. Wolfe, 110 So. 842; Murray v. Natchez Drug Co., 100 Miss. 260; McTighe v. Johnson, 114 Miss. 862; Whitecarver v. Miss. Power Co. (Dist. Court Miss.), Adv. Sheet Fed. Supplement, April 9, 1934, 948; Whitecarver v. Miss. Power Co., Adv. Sheet Fed. Rep., April 2, 1934 (C. C. A.), 928.

An expert may testify as to whether or not a particular installation is properly made.

Dodson v. Lbr. Co., 80 So. 205; A. & V. Railroad v. Groom, 97 Miss. 206; Dirks Lbr. Co. v. Brown, 19 F.2d 732; 21 Am. & Eng. Encyc. of Law, 487; Yarn v. Fort Dodge Electric Co., 31 F.2d 717; A. & V. R. R. v. Fountain, 111 So. 153.

It is immaterial as to whether or not the relationship of master and servant existed or that of independent contractor as the duty is the same under the authorities hereinbefore cited, and of course the duty of the master to furnish a reasonably safe place to work and make reasonable inspections by competent employees is well settled in Mississippi.

Finkbine Lumber Co. v. Cunningham, 101 Miss. 292; Miss. Power Co. v. Smith, 153 So. 376.

Argued orally by W. L. Guice and J. H. Thompson, for appellant, and by S. C. Mize, for appellee.

OPINION

Smith, C. J.

This is an appeal from a judgment for damages for the death of the appellee's intestate. The case was tried twice, resulting each time in judgment for the appellees; the first judgment being set aside by the court below. There is both a direct and a cross-appeal; the purpose of the cross-appeal being to have the first judgment reinstated, it being for a larger amount than the second. On the direct appeal, the appellant's main contention, and if it disappears its others are without merit, is that the court below should have granted its request for a directed verdict.

The appellant owns and operates a creamery, a refrigerating plant being a part thereof. A part of its refrigeration outfit consists of an ammonia tank. This tank was on the second floor of the building in which the machinery was housed, and was securely attached to a heavy timber on the floor thereof. Projecting from this ammonia tank and about eighteen inches above the floor was a metal pipe, of either wrought iron or steel, three-quarters of an inch in diameter and twelve inches long; attached thereto at the end thereof was a quite heavy valve, which together with its necessary appurtenances was seven and a quarter inches long, making the total length of the pipe and the valve nineteen and a quarter inches. The building in which the...